Opinion · Court of Appeals for the Fifth Circuit

United States v. Michael Joseph Battaglia, Jr.

478 F.2d 854

Type
Opinion
Court
Court of Appeals for the Fifth Circuit
Jurisdiction
Federal
Date
1972-11-16
Topic
litigation

How later courts describe this case

  • misinformation in the presentence report warranted a correction of sentence

Citator

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Cited by
25 opinions
UNITED STATES v. BATTAGLIA,478 F.2d 854(5th Cir. 1972)
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. MICHAEL JOSEPH BATTAGLIA,
JR., DEFENDANT-APPELLANT.
No. 72-1754.
Summary Calendar.fn*
United States Court of Appeals, Fifth Circuit.
November 16, 1972.
Paul Henry Kidd, Robert P. McLeod, Monroe, La., for defendant-appellant.

Donald E. Walter, U.S. Atty., D.H. Perkins, Jr., Asst. U.S. Atty., Shreveport, La., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Louisiana.
Before WISDOM, GODBOLD and RONEY, Circuit Judges.
PER CURIAM:
[1] The appellant pleaded guilty to passing counterfeit bills and was sentenced to five years. He then petitioned the Court to set aside the conviction or to modify the sentence.

[2] There is no merit to appellant's Rule 11 attack on his guilty plea so we will not disturb his conviction.

[3] At the time of sentencing, the trial judge stated that he was taking into consideration certain facts which he believed to be true. The defendant says they are untrue. On consideration of the motion, the judge said that he would have imposed the same sentence even if the facts were untrue. Although this may be so, we think it is better to assure the defendant that the alleged untrue facts will not affect his sentence by permitting him a hearing at which he may seek to remove any lingering doubt the court may have had about the true situation. The court should then reconsider the sentence in the light of the true facts as found after hearing.

[4] Vacated and remanded for resentencing.Page 855
  1. Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970,431 F.2d 409, Part I. ↩